SZJAX v Minister for Immigration
[2007] FMCA 1517
•24 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJAX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1517 |
| MIGRATION – Review of Refugee Review Tribunal decision – where applicant claimed persecution on religious grounds – where Tribunal found inconsistencies in applicant’s evidence – where Tribunal did not find applicant to be credible – whether apprehended or actual bias – whether breach of s.424A – whether Tribunal imputed religious opinion to applicant. |
| Migration Act 1958, s.424A |
| SAAP v Minister for Immigration [2005] HCA 24 Re RRT; Ex parte H (2001) 179 ALR 425 SZBYR v Minister for Immigration [2007] HCA 26 WALT v Minister for Immigration [2007] FCAFC 2 SBWCC v Minister for Immigration [2006] FCAFC 129 |
| Applicant: | SZJAX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1915 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 August 2007 |
| Date of last submission: | 24 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2007 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3500.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1915 of 2006
| SZJAX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People's Republic of China. He arrived in Australia on 4 December 2005. On 5 January 2006 he applied for a protection (class XA) visa to the Department of Immigration and Multicultural Affairs. On 20 February 2006 a delegate of the Minister refused to grant a visa and on 20 March 2006 the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. The Tribunal held a hearing which the applicant attended, and on 31 May 2006 determined to affirm the decision not to grant the visa and handed that decision down on 22 June 2006.
In his application for a protection visa the applicant provided a short statement. It says relevantly at [CB27]:
“I was born in Fujian PRC and from a Christian family. Followed my parents, I participated in Christian activities. When I was still very young, I already knew that our activities were not allowed by the government. Our activities were related with underground church. Government always detains members of our church. Some of them have been sentenced to imprisonment. We can not enjoy freedom of religion in China … My parents were sentenced to two year imprisonment in November 2004 … I will face persecution from the Chinese authorities on my return to China. My parents are still in prison, suffering persecution from the Chinese authorities. Police has got the information that I left China with the help of a government official, and that government official is at a court case now. I will be imprisoned on my return to China.”
Before the Tribunal the applicant referred to his religion as that of a “Shouter” at [CB70]:
“I asked the Applicant how he practised his religion. He stated that he did not understand much about the religion but his parents are active in all the religious activities. He said that is why he is viewed as a Shouter. He stated that Shouters tell God real words from the bottom of their hearts and pray truly. Other people call them Shouters … The Applicant was aware that Ni Tuosheng founded the Shouters in 1922. The applicant was unable to discuss anything further about the religion.”
The Tribunal questioned the applicant at some length about his religious activity. At [CB71]-[72] the Tribunal notes:
“It was the Applicant’s evidence that he had been a member of the Shouters since he was a young child. He again stated that he did not know much about the religion, but was discriminated against because he was involved in the religion. Gatherings took place on Friday evenings and Sunday mornings. He attended all the gatherings and just listened to the songs. I asked the Applicant how he could know so little about the religion if he had attended on so many occasions. His parents are devoted. He then stated that sometimes he did not go to the gatherings. It depended on whether he was at home or free to go there.
I mentioned to the Applicant that it seemed he was not really committed to the religion. He said he believed in it but knew little about it. He said that even though the gatherings occurred twice weekly he was under no obligation to attend. He suffered discrimination because of his religion from persons at school as he was growing up.
…
I asked the Applicant to tell the Tribunal what his favourite Bible story was. He replied that he had already explained that he knew little about the religion. I asked if he knew anything about the Bible. He stated that he knew that Jesus was born in the year 000 in a horse warehouse and he passed away on a mountain after being placed on a cross. He stated that Jesus came back alive after three days and then spread God’s message for three years. Jesus travelled around with his 12 disciples after he returned.”
In its findings and reasons which commence at [CB73] and conclude at [CB74] the Tribunal states:
“The Applicant’s responses during his evidence before the Tribunal were not impressive. His evidence was at times implausible, vague, unconvincing and contradictory. The following matters led the Tribunal to conclude that the applicant is not a credible witness in respect of his claims for protection”
The Tribunal then goes on to make reference to some inconsistencies in the applicant’s evidence about the date he ceased work and importantly, about the fact that the applicant had said that his uncle had obtained his passport for him in 2004 when in fact the passport had been obtained in 2002, and made reference to the applicant’s story that his parents had obtained the passport for him earlier. The Tribunal went on to say at [CB73]-[74]:
“During his evidence before the Tribunal, the Applicant claimed that he was a member of the Shouters since he was a young child. For many years he attended gatherings on Friday evenings and Sunday mornings. When asked by the Tribunal to explain why the Shouters are called [such], he was unable to do so. His knowledge about the religion was minimal. He was able to state who founded the religion and when but was unable to expand when asked questions about the religion. He constantly stated throughout the hearing that he did not know much about the religion. When the Tribunal put to the Applicant that he did not seem to be very committed to the religion he said that he believed in it but he knew little about it. The Applicant mentioned in his evidence that Shouters read and discuss the Bible. When asked if he could mention what his favourite Bible story was, he replied that he had already explained to the Tribunal that he knew very little about the religion. The Tribunal finds it implausible that a person who claimed to have a history of attending gatherings twice weekly from childhood until adulthood where the Bible was discussed and other religious activities had taken place, would demonstrate such a lack of knowledge as the Applicant did during the hearing before the Tribunal in relation to the religion he claims to practise. The Tribunal is not satisfied that the Applicant was involved in the Shouters’ religion, as claimed.”
The applicant filed an amended application under the Migration Act 1958 (“the Act”) on 28 September 2006. The document is in a familiar form, quoting alleged breaches of s.424A of the Act and making reference to the decision of the High Court in SAAP v Minister for Immigration [2005] HCA 24. The amended application in no way particularises the information that is alleged not to have been given by the Tribunal to the applicant. Before me today the applicant suggested that the Tribunal was biased and did not properly understand the grounds of his application. He said the decision was based on assumptions and not evidence and that the Tribunal did not provide him with information about why it intended to refuse his application.
In the absence of particulars it is very difficult for the court to make its views known about these allegations and it is not really appropriate that a court should have to trawl through a decision in an attempt to seek out from it possible evidence of apprehended bias. There is most certainly no evidence whatsoever of actual bias, an allegation that must be clearly made and strictly proved. I am likewise convinced that a fair-minded lay observer would not reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Re RRT; Ex parte H (2001) 179 ALR 425 at [27]. I am likewise not satisfied that there is any evidence whatsoever that the decision was based on assumptions. The decision was based upon an assessment of the applicant’s credibility which the applicant failed.
The claim under s.424A is really a claim that the Tribunal is required to provide an applicant with some form of preliminary assessment or draft decision so that an applicant can respond. This proposition was considered by the High Court in SZBYR v Minister for Immigration [2007] HCA 26 at [18] where the majority, Gleeson CJ, Gummow, Callinan, Heydon, Crennan JJ, said:
“Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such belief could be characterised as constituting ‘information’ within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’. Finn and Stone JJ correctly observed in VAF v Minister for Immigration (2004) 206 ALR 471 at 476-477 that the word ‘information’:
“does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gap, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.””
Although the applicant did not raise the matter either in his oral submissions or in his amended application, I raised with the legal practitioner appearing on behalf of the Minister whether or not the Tribunal might have fallen into jurisdictional error by not considering the possibility that the applicant might be the subject of persecution not for his religion but because that religion was imputed to him. I referred in particular to the statement extracted earlier that the applicant’s parents were active in the religious activities and that was why he was viewed as a Shouter [CB70] and also the statement that I extracted from [CB71] that he “was discriminated against because he was involved in the religion”.
I suggested to Mr Markus that this could be consistent with the applicant not knowing very much about the religion but he argued forcefully, and I think persuasively, that the Tribunal was entitled to come to the view that the applicant’s lack of knowledge about the religion which he had been so closely associated with over such a long period of time allowed it to conclude that none of his evidence was credible, including evidence as to the religious activities of his parents. In this way there would be no imputation because there was clearly no association. It is to be remembered that in addition to the Tribunal’s concerns over the applicant’s apparent lack of knowledge of the Shouters’ observances, there was the very serious matter of the story about the passport which tended to suggest to the Tribunal that the applicant was not a witness of truth.
For these reasons I am satisfied that the Tribunal did not fall into error by failing to consider the applicant as a person who feared persecution on the basis of imputed religious opinion, and as I have already made it clear that I saw no grounds of review in relation to those matters which the applicant had raised, it follows that I must dismiss the application. It should be said that in considering the Tribunal’s questioning of the applicant I have borne in mind the views expressed by the Full Court in WALT v Minister for Immigration [2007] FCAFC 2 at [28]-[30] and the views expressed by another Full Court in SBWCC v Minister for Immigration [2006] FCAFC 129 at [45]‑[48]. I do not think the questioning of the applicant by the Tribunal in the manner evidenced in the decision record constituted the Tribunal as an arbiter of religious doctrine.
The applicant is dismissed. The applicant must pay the respondent’s costs which I assess in the sum of $3500.00. I order that the name of the First Respondent be changed to “Minister of Immigration and Citizenship”.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 5 September 2007
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